Plan Related Amendments

AMENDMENT TO TERMINATE

SAFEHARBORMATCHING CONTRIBUTION[1]

ARTICLE I

PREAMBLE

1.1Decision to terminate matching contributions. The Employer adopts this Amendment to the Plan to terminate (i.e., to eliminate prospectively) the Plan’s matching contribution provisions.[2]

1.2Superseding of inconsistent provisions. This Amendment supersedes the provisions of the Plan to the extent those provisions are inconsistent with the provisions of this Amendment.

1.3Construction. The Article and Section numbering in this Amendment is solely for purposes of this Amendment, and does not relate to the Plan article, section or other numbering designations.

ARTICLE II

AMENDATORY PROVISIONS

2.1Effective Date. This Effective Date of this Amendment is: ______.[3]

2.2Elimination of SafeHarborMatching Contribution. Beginning on the Effective Date, the Plan no longer will provide the Safe Harbor Matching Contribution (as described in Treas. Reg. §1.401(k)-3(c)) [and any other matching contributions[4]] currently provided by the Plan.

2.3Accrued Contributions not affected. This Amendment does not affect Safe Harbor Matching Contributions [or any other matching contributions[5]] any Eligible Employee has earned under the Plan prior to the Effective Date. The Employer will contribute to the Plan all such accrued contributions.

2.4Limitation on Compensation/matching contributions. In calculating the Safe Harbor Matching Contributions [and any other matching contributions4] accrued as of the Effective Date, the Employer will not consider an Employee’s Compensation (or, in the case of the matching contributions eliminated by this Amendment, any Elective Deferrals from such Compensation)paid on or after the Effective Date. Furthermore, the maximum Compensation the Plan will take into account for any Employee in determining the Employee’s Safe Harbor Matching Contributions [and any other matching contributions4] earned prior to the Effective Date may not exceed the applicable compensation limit under Code §401(a)(17), prorated as of the Effective Date as provided in Treas. Reg. §1.401(a)(17)-1(b)(3)(iii)(A).[6]

2.5Current year testing. This Amendment amends the Plan’s testing provisions to provide that the Plan will satisfy the ADP test and the ACP test[7] for the entire plan year that includes the Effective Date using the Current Year Testing Method described in Treas. Reg. §§1.401(k)-2(a)(2)(ii) and 1.401(m)-2(a)(2)(ii).

2.6Notice to Eligible Employees. The Plan Administrator will provide notice of this Amendment to all Eligible Employees at least 30 days prior to the Effective Date, in the form of the supplemental notice attached to this Amendment.

2.7[Opportunity to amend deferral elections. Notwithstanding any other Plan limit on the timing of an Eligible Employee’s deferral election, the Plan Administrator will provide each Eligible Employee a reasonable opportunity (including a reasonable period after receipt of the attached supplemental notice) prior to the Effective Date to amend his/her deferral election.[8]]

This Amendment has been executed this ______day of ______, ______.

Name of Plan:

Name of Employer:

By:

EMPLOYER

CERTIFICATE OF ADOPTING RESOLUTION

The undersigned authorized representative of (the Employer) hereby certifies that the following resolutions were duly adopted by Employer on , , and that such resolutions have not been modified or rescinded as of the date hereof;

RESOLVED, that the Amendment to the Plan (the Amendment) to eliminate the Plan’s Safe Harbor Matching Contribution [and all other matching contributions[9]] as provided in the Amendment is hereby approved and adopted, and that an authorized representative of the Employer is hereby authorized and directed to execute and deliver to the Plan Administrator one or more counterparts of the Amendment.

FURTHER RESOLVED, that the Plan Administrator is directed to deliver a copy of the Supplemental Notice attached to this Amendment to each Eligible Employee.

The undersigned further certifies that attached hereto is a copy of the Amendment approved and adopted in the foregoing resolution, as well as a copy of the Supplemental Notice to Employees to be delivered to all eligible Employees.

Date:

Signed:

_____

[print name/title]

© Copyright 2009 SunGard5/09 530-1

Plan Related Amendments

© Copyright 2009 SunGard5/09 530-1

[1]The purpose of this Amendment is to enable an employer that has adopted a safe harbor 401(k) plan using safe harbor matching contributions to amend the plan during the plan year to terminate (i.e., to eliminate) future accrual of the safe harbor contributions after the Amendment’s effective date. Alternatively, the employer may reduce, rather than eliminate, the matching contribution, in which case the practitioner should modify the Amendment accordingly. Attached to this Amendment is a Certificate of Adopting Resolution the employer may use to document its formal adoption of the Amendment.

[2]The employer may eliminate or reduce prospectively the safe harbor matching contribution, as well as any other matching contributions, at any time by following the regulatory “exiting” rules. Treas. Reg. §1.401(k)-3(g) and Prop. Treas. Reg. §1.401(k)-3(g)(1)(ii)(A). This Amendment assumes the employer wishes to terminate prospectively all of the plan’s matching contribution provisions. If the employer wishes to continue any matching contribution provision, the practitioner should modify the Amendment accordingly.

[3]The Effective Date must be on or after the adoption date of this Amendment. Treas. Reg. §1.401(k)-3(g)(1)(ii) and Prop. Treas. Reg. §1.401(k)-3(g)(1)(i)(B). In addition, the Amendment may be effective no sooner than 30 days after the date the employer provides a supplemental notice of the Amendment to all eligible employees.

[4]If the plan does not provide any other matching contributions in addition to the ADP safe harbor matching contribution, the practitioner should delete the bracketed language. The practitioner also should delete the bracketed language if the plan provides other matching contributions, but the employer does not wish to terminate the other matching contributions when it terminates the ADP safe harbor matching contribution.

[5]If the plan does not providing any other matching contributions in addition to the ADP safe harbor matching contribution, the practitioner should delete the bracketed language.

[6]See the preamble to the proposed safe harbor nonelective “exiting” regulations, 74 FR 23134 (May 18, 2009).

[7]See Treas. Reg. §1.401(m)-3(h)(1)(iv) and Prop. Treas. Reg. §1.401(m)-3(h)(1)(i)(D).

[8]If the plan provides continuous opportunity to change an employee’s deferral election, the practitioner may delete this provision.

[9]Delete the bracketed language if the plan does not provide any matching contributions other than the ADP safe harbor matching contributions, or if the employer does not wish to eliminate the other matching contributions when it terminates the ADP safe harbor matching contribution.